European Court of Human Rights

The Chamber of seven judges to be constituted included, as ex officio members, Sir Vincent Evans, the elected judge of British nationality (Article 43 of the Convention) (art. 43), and Mr. R. Ryssdal, the President of the Court (Rule 21 para. 3 (b)). On 19 March 1986, the President drew by lot, in the presence of the Registrar, the names of the five other members, namely Mrs. D. Bindschedler-Robert, Mr. G. Lagergren, Mr. C. Russo, Mr. J. Gersing and Mr. J. De Meyer (Article 43 in fine of the Convention and Rule 21 para. 4) (art. 43).

By letter of 21 October 1986, the Secretary to the Commission informed the Registrar that the Delegate would present his observations at the hearings.

(a) the Chamber decided under Rule 50 to relinquish jurisdiction forthwith in favour of the plenary Court;

(b) the President of the Court directed that the oral proceedings in this case and in the cases of O, H, W and B v. the United Kingdom be conducted simultaneously and that the same should open on 25 November 1986 (Rules 37 para. 3 and 38);

(c) the Court decided that, in view of the exceptional circumstances, the hearings should be held in camera (Rule 18).

As regards points (b) and (c), the Court or its President, as the case may be, had previously consulted, through the Registrar, the Agent of the Government, the Delegate of the Commission and the representatives of the applicants.

There appeared before the Court:

- for the Government

       Mr. M. Wood, Legal Counsellor,

                            Foreign and Commonwealth Office,                            Agent,

       The Hon. Michael Beloff, Q.C.,

       Mr. E. Holman, Barrister-at-Law,                                            Counsel,

       Mr. R. Aitken, Department of Health and Social Security,

       Mrs. A. Whittle, Department of Health and Social Security,

       Mr. H. Redgwell, Lord Chancellor’s Department,

       Mr. P. Evans, Solicitor’s Office,

                            Gloucestershire County Council,                            Advisers;

- for the Commission

       Mr. H. Danelius,                                                                     Delegate;

- for the applicant

       Ms. J. Hoyal, Barrister-at-Law,                                                Counsel,

       Mr. P. Jones,                                                                             Solicitor.

The Court heard addresses by Mr. Beloff for the Government, by Mr. Danelius for the Commission and by Ms. Hoyal for the applicant, as well as replies to questions put by the Court and three of its members.

The Government filed various documents during or immediately after the hearings.

AS TO THE FACTS

I.  PARTICULAR CIRCUMSTANCES OF THE CASE

A. Background

In March 1980, the applicant was visited by a social worker who told her of A’s entry on the "at-risk register". On another occasion, the social worker warned Mr. B that, if he did not "buck his ideas up", A would be taken away. In mid-1980, Mr. B sought treatment for his drinking problem, but when on week-end leave relapsed and again assaulted the applicant.

B. Placing of A and J in voluntary care

The applicant was discharged from hospital on 19 October and A was returned home in November, but the situation with Mr. B did not improve.

C. Assumption of Mr. B’s parental rights in respect of A and J and further developments

Following a case conference held in March 1981 - in the absence of the applicant, who had not been informed of the meeting -, the Authority decided to place J, in addition to A, on the "at-risk register" in view of the uncertainty of the family’s position. Nevertheless, the social worker responsible told the meeting that it was hoped that in time the children would be re-united with the applicant; the possibility that she might resume living with Mr. B was also discussed, but no decision was reached as to the consequences which this should have for her and the children.

On 26 March, A and J were discharged from care and went to live with the applicant at the refuge.

On 1 April, the applicant met Mr. B outside the court and they agreed to try to resume their relationship despite the proceedings. The facts relating to the subsequent 24 hours are in dispute. According to the applicant, she asked the foster parents to look after the children for a further night so that she could establish the effectiveness of the reconciliation with Mr. B. She also states that she was told to contact a senior social worker, whom she had never met, who informed her that she could not have her children returned to her if she intended to resume her relationship with Mr. B; she understood the position to be that she should leave the children with the foster parents until 3 April, that the Authority would take no action in the meantime and that, on that date, she should discuss the matter with the social worker whom she knew. According to the social worker’s records, the applicant and Mr. B were both warned on 1 April that the Authority would have to obtain some legal authority over the children, although a parental rights resolution was not mentioned.

D. Assumption of the applicant’s parental rights in respect of A and J

"... In the longer term, consideration should be given to spelling out to [the applicant] what we would expect of her prior to discharging the children to her again, and that if she appears unable to provide long-term satisfactory care for them we would move to considering freeing them for adoption."

The applicant, who had not been contacted by the Authority on 2 April either in respect of this discussion or otherwise, attended the Social Services Department on the following day as, according to her, she had arranged. She states that she was informed on 3 April that the Authority had passed a resolution assuming her parental rights over A and J.

E. Court proceedings to challenge the resolution in respect of the applicant’s parental rights

On her release from prison on 9 October, the applicant asked to see her children. She was told that she could not, firstly because she had been in prison and secondly because of her relationship with Mr. B; she also learned, for the first time, that it was proposed to place the children for adoption in the very near future. They were in fact so placed in December, with long-term foster parents to whom they had been introduced on 6 November. The applicant, who had last seen A and J on 13 September 1981, did not see them again until April 1986 (see paragraph 28 below).

"I do not suggest anyone is to blame for this. It may merely be the result of circumstances ... It cannot be sufficiently stressed that in a case such as the present, where continuity is seen by all concerned to be highly relevant, and indeed was the very basis of the decision of the court below, expedition is all in relation to the possible success of an appeal. There is no reason why an interlocutory application should not be made in this court to expedite the hearing of an appeal."

The applicant was given leave to appeal to the Court of Appeal against the High Court’s decision, but did not pursue the matter.

F. Wardship proceedings

The applicant was granted leave to appeal against this decision but was advised that there were no grounds for doing so; she was also told at that time that there were no further remedies available to her for the resumption of access to the children.

G. Local Ombudsman

The applicant alleged maladministration in that (a) there were shortcomings in the way in which the Authority assumed her parental rights in April 1981 and (b) the Authority failed subsequently to keep her informed of its intentions for her children. In his report of 9 May 1984, the Local Ombudsman found maladministration on the first but not on the second of these grounds, although he added that ideally the applicant should have been told of the decision taken at the case conference of 25 August 1981 (see paragraph 21 above). In considering the injustice suffered as a result of the maladministration found, he stated:

"I cannot now speculate what would have happened had the errors not occurred. Events may quite well have turned out no differently, but it is impossible to say. The clock cannot be put back and, as I have made clear, the future of the children is in the hands of the courts. Accordingly there is little that the [Authority] can now do to remedy the possible injustice, except to apologise to [the applicant] and reimburse her for any costs she has incurred in making her complaint to me, and to review [its] procedures. I am pleased to note that [it is] already carrying out such a review."

H. Subsequent developments

II. RELEVANT DOMESTIC LAW AND PRACTICE

A. Child care

1. Introduction

Although the terms are not wholly accurate, the legislation is commonly divided into two categories: the first provides for "compulsory care", by establishing machinery whereby a local authority can obtain a court order committing a child to its care; the second concerns "voluntary care", the machinery here being originally designed to meet an emergency situation without the need of recourse to the courts. At any given time, there are approximately 86,000 children in public care in England and Wales, of whom 70,000 are not living with their parents or a relative.

The statutory provisions have been amended on several occasions and many of them were repealed and replaced by the Child Care Act 1980 ("the 1980 Act"), a consolidating measure the greater part of which came into force on 1 April 1981. In the following summary of the law in force at the time of the present case, the original enactments are cited first and any corresponding provision of the 1980 Act in force at the relevant time is indicated in square brackets.

By way of general background information, the summary covers all three of the procedures referred to above (namely those relating to compulsory care, voluntary care and wardship), but in the present case it was the machinery for voluntary care and the wardship jurisdiction of the High Court which were directly relevant.

2. Compulsory care

(a) Place of safety order

A "place of safety order" so granted lasts for a maximum of 28 days and cannot be extended. The person detaining the child must as soon as possible take such steps as are practicable for informing his parent of the detention and the reason for it.

If the local authority wishes to retain the child in protective surroundings after the 28-day period, it has either to make the child a ward of court (see paragraphs 47-49 below), or to institute care proceedings under section 1 of the 1969 Act (see paragraphs 32-34 below), or to apply to a justice or a magistrates’ court for an interim order under section 28(6) (see paragraph 37 below); if an application of the last kind is refused, the child’s immediate release "may be ordered".

(b) Longer-term measures

(i) Care proceedings

A natural parent who is not acting on behalf of the child is entitled to be notified of and to attend the hearing and to give and call evidence challenging the allegations made by the local authority. As a matter of practice, the court will also allow such parent to cross-examine witnesses on behalf of the local authority and to have separate legal representation.

(ii) Relevant orders

(c) Termination, variation or discharge of full care orders

In addition, under sections 21(2) and 70(2), the juvenile court may, on application by the child or his parent on the child’s (but not his own) behalf and if it considers it appropriate, discharge the care order and may, on discharging it, make a supervision order in respect of the child. Such applications may be made every three months or, with the juvenile court’s permission, more frequently (section 21(3)). The paramount consideration in deciding whether to discharge the order is the interests of the child.

(d) Appeals concerning care orders

The local authority has no general right to appeal against a juvenile court’s refusal to make a care order, except on a point of law to the High Court.

3. Voluntary care

(a) Reception of a child into care

Moreover, if a parent requests the return of the child, the authority is not compelled to comply regardless of his welfare (Lewisham London Borough Council v. Lewisham Juvenile Court Justices [1979] 2 All England Law Reports 297). If it then considers the transfer of care to the parent to be inconsistent with that welfare, it may either pass a parental rights resolution (see paragraph 43 below) or apply to make the child a ward of court (see paragraphs 47-49 below).

(b) Parental rights resolution

Before passing a parental rights resolution, the local authority must consider a report from its Social Services Department on the desirability of assuming parental rights, which report should contain all the material necessary for the proper exercise of the authority’s discretion. In deciding the matter, the authority is to regard the interests of the child as of paramount importance and the views of the parents on the proposal are to be taken into account.

(c) Objections to parental rights resolutions

(d) Termination or discharge of parental rights resolutions

The parent concerned, even if he did not originally object to the parental rights resolution, may apply to a juvenile court for its discharge. The court may grant the application if it is satisfied that there were no grounds for the making of the resolution or that it should be terminated in the child’s interests (section 4(3)(b) [5(4)(b)]). An application based on the original foundation for the resolution can, however, be entertained only if lodged within six months of its adoption (section 127 of the Magistrates’ Court Act 1980).

(e) Appeals concerning parental rights resolutions

4. Wardship

Where there are exceptional circumstances making it impracticable or undesirable for the ward to be, or continue to be, under the care of his parents, the court may make an order committing him to the care of the local authority (Family Law Reform Act 1969, section 7(2)), subject to the power of the court to give directions (Matrimonial Causes Act 1973, section 43(5)(a)). In such circumstances, custody of the child remains with the court and it is for the court, and not the local authority, to take major decisions regarding the ward’s future; it retains, inter alia, jurisdiction to make orders for access to the child.

A judge will hear contested wardship proceedings and also applications - which can be made at any time by any party - for the variation or discharge of an existing wardship order or for directions on such matters as access to or the education of the child. From the judge’s order, an appeal lies to the Court of Appeal and thence, with leave, to the House of Lords.

The child may be represented in wardship proceedings by a guardian ad litem appointed by the court; this is usually the Official Solicitor, who is a full-time public employee entirely independent of the executive.

Under the Rules of the Supreme Court, it is possible to seek an order expediting the proceedings, notably if a party thereto is dilatory.

5. Decisions of a local authority relating to a child in its care and judicial review thereof

Authorities’ decisions in this area are, in fact, often based on the outcome of case reviews or case conferences. The authority is under a statutory duty to review the case of each child in its care at six-monthly intervals (section 27(4) of the 1969 Act) and, as a matter of practice, the child’s position will in addition be regularly examined at case conferences. Reviews and conferences will be attended notably by the social workers responsible and senior officials of the authority’s Social Services Department, as well as by such other persons as health visitors, doctors and police officers.

In the absence of legal proceedings, the parent cannot compel the local authority to produce or permit inspection of the minutes of its relevant meetings or reports produced thereat, although the authority has a discretion to allow such inspection. In proceedings for judicial review (but not in juvenile court proceedings), the court may order the pre-trial disclosure of such documents, but only after leave to institute the proceedings has been obtained (see paragraph 53 below); however, this would be a rare occurrence, the general rule being that the documents are privileged and not open to inspection.

Both the 1948 [1980] Act and the 1969 Act reflect the general idea that continuation of parental access to children in public care is in many cases normal and desirable: the former allows the local authority to contribute to the costs of parental visits and the latter makes special provision for certain cases where the parents have not visited the child during a certain period of time.

A decision of a local authority concerning access can, however, be challenged by way of an application for judicial review. Anyone who wishes to make such an application must first seek, normally within three months of the decision, the leave of the court. The circumstances where judicial review will lie may be briefly summarised as follows:

(a) the authority acted illegally, ultra vires or in bad faith;

(b) the authority failed to take into account relevant considerations, took account of irrelevant considerations or came to a decision to which no reasonable authority could have come (Associated Provincial Picture Houses, Ltd. v. Wednesbury Corporation [1948] 1 King’s Bench Reports 223);

(c) the authority failed to observe statutory procedural rules or to act fairly (see notably R v. The Bedfordshire County Council, ex parte C and R v. The Hertfordshire County Council, ex parte B, Times Law Reports, 19 August 1986).

The remedy of judicial review is concerned with reviewing not the merits of the decision in question but rather the decision-making process itself, and the court will not act as a "court of appeal" from the body involved. Thus, where on a successful application for judicial review the court quashes an authority’s decision, it will normally remit the matter to the authority for reconsideration; it may, however, also direct the authority to reach a conclusion in accordance with the court’s findings (Rules of the Supreme Court, Order 53, rule 9(4)).

The foregoing limits on the High Court’s powers apply only where the wardship proceedings concern a child who is already in public care. If he is not, the High Court can examine fully such questions as access and make such order as it considers to be in his best interests.

6. Subsequent developments

Under the new provisions - which came into force on 30 January 1984, that is after the events giving rise to the present case -, a local authority may not refuse to make arrangements for access to a child in care and may not terminate such arrangements unless it has first given notice to the parent. The latter then has a right to apply to a juvenile court for an access order, requiring the local authority to allow access subject to such conditions as the court may specify. Where an access order has been made, there is a right to apply for variation. An appeal against the juvenile court’s decision lies to the High Court. Any court dealing with the matter must regard the welfare of the child as the first and paramount consideration.

This new remedy applies only to decisions refusing or terminating access; in all other cases, the nature and extent of access remain within the local authority’s discretion.

B. Adoption

PROCEEDINGS BEFORE THE COMMISSION

In its report adopted on 4 December 1985 (Article 31) (art. 31), the Commission expressed the opinion that:

- there had been a violation of Article 6 para. 1 (art. 6-1) in that the applicant was denied access to court for the determination of her civil right of access to A and J (twelve votes to three);

- there had been a violation of Article 8 (art. 8) in that the procedures which were applied in reaching the decisions to terminate the applicant’s access to A and J did not respect her family life (unanimous);

- no separate issue arose under Article 13 (art. 13) (twelve votes to two, with one abstention).

"- first, that there has been no violation of Article 8 (art. 8) of the Convention in the case of any of the applicants;

- second, that there has been no violation of Article 6 para. 1 (art. 6-1) of the Convention in the case of any of the applicants;

- third, that in the case of the applicants [O, W, B and R] no separate issue arises under Article 13 (art. 13), but that if it does there has been no breach of Article 13 (art. 13) either".

AS TO THE LAW

I.  SCOPE OF THE ISSUES BEFORE THE COURT

Since the Commission’s admissibility decision delimits the compass of the case brought before the Court (see, as the most recent authority, the Johnston and Others judgment of 18 December 1986, Series A no. 112, p. 23, para. 48), the latter is not in the circumstances competent to examine or comment on the justification for such matters as the taking of the children into public care or the restriction or termination of the applicant’s access to them.

II. ALLEGED VIOLATION OF ARTICLE 8 (art. 8)

"1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2.  There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."

The violation was claimed to have arisen by reason of the procedures followed by the Authority in reaching its decisions to assume the applicant’s parental rights in respect of A and J and to terminate her access to them, of the absence of remedies against the latter decision and of the length of certain related judicial proceedings.

These allegations were contested by the Government, but the Commission concluded that there had been a violation.

A. General principles

(a) an interference with the right to respect for family life entails a violation of Article 8 (art. 8) unless it was "in accordance with the law", had an aim or aims that is or are legitimate under Article 8 para. 2 (art. 8-2) and was "necessary in a democratic society" for the aforesaid aim or aims (see notably, mutatis mutandis, the Gillow judgment of 24 November 1986, Series A no. 109, p. 20, para. 48);

(b) the notion of necessity implies that the interference corresponds to a pressing social need and, in particular, that it is proportionate to the legitimate aim pursued (see, inter alia, the Leander judgment of 26 March 1987, Series A no. 116, p. 25, para. 58);

(c) although the essential object of Article 8 (art. 8) is to protect the individual against arbitrary interference by the public authorities, there may in addition be positive obligations inherent in an effective "respect" for family life (see, amongst other authorities, the above-mentioned Johnston and Others judgment, Series A no. 112, p. 25, para. 55);

(d) in determining whether an interference is "necessary in a democratic society" or whether there has been breach of a positive obligation, the Court will take into account that a margin of appreciation is left to the Contracting States (see, for example, the above-mentioned Leander judgment, p. 25, para. 59, and the above-mentioned Johnston and Others judgment, loc. cit.).

Debate centred on the question whether the procedures followed had respected the applicant’s family life or constituted an interference with the exercise of the right to respect for family life which could not be justified as "necessary in a democratic society". The applicant and the Commission took the view that the procedures applicable to the determination of issues relating to family life had to be such as to show respect for family life; in particular, according to the Commission, parents normally had a right to be heard and to be fully informed in this connection, although restrictions on these rights could, in certain circumstances, find justification under Article 8 para. 2 (art. 8-2). The Government, as their principal plea, did not accept that such procedural matters were relevant to Article 8 (art. 8) or that the right to know or to be heard were elements in the protection afforded thereby.

On the other hand, predominant in any consideration of this aspect of the present case must be the fact that the decisions may well prove to be irreversible: thus, where a child has been taken away from his parents and placed with alternative carers, he may in the course of time establish with them new bonds which it might not be in his interests to disturb or interrupt by reversing a previous decision to restrict or terminate parental access to him. This is accordingly a domain in which there is an even greater call than usual for protection against arbitrary interferences.

It is true that Article 8 (art. 8) contains no explicit procedural requirements, but this is not conclusive of the matter. The local authority’s decision-making process clearly cannot be devoid of influence on the substance of the decision, notably by ensuring that it is based on the relevant considerations and is not one-sided and, hence, neither is nor appears to be arbitrary. Accordingly, the Court is entitled to have regard to that process to determine whether it has been conducted in a manner that, in all the circumstances, is fair and affords due respect to the interests protected by Article 8 (art. 8). Moreover, the Court observes that the English courts can examine, on an application for judicial review of a decision of a local authority, the question whether it has acted fairly in the exercise of a legal power (see paragraph 53 above).

In the Court’s view, what therefore has to be determined is whether, having regard to the particular circumstances of the case and notably the serious nature of the decisions to be taken, the parents have been involved in the decision-making process, seen as a whole, to a degree sufficient to provide them with the requisite protection of their interests. If they have not, there will have been a failure to respect their family life and the interference resulting from the decision will not be capable of being regarded as "necessary" within the meaning of Article 8 (art. 8).

B. Application in the instant case of the foregoing principles

(a) Between September 1980 and March 1981, the applicant’s difficult family situation caused her to place A, and then A and J, into the voluntary care of the Authority for certain periods.

(b) In April 1981, the Authority decided to assume the applicant’s parental rights in respect of the children, who were placed with short-term foster parents.

(c) At a case conference on 25 August 1981, the Authority took the contingent decision that if its parental rights resolution - which was under challenge by the applicant in the juvenile court - remained in force, her access to A and J would be stopped and they would be placed for adoption with long-term foster parents. The applicant was not notified of this conference or its outcome. In ignorance thereof, she withdrew her objection to the resolution on 29 September 1981 on the advice of her solicitors.

(d) The applicant had access to the children up to September 1981. However, she was told on 9 October 1981 that she could no longer see them and that it was proposed to place them for adoption, a step which was in fact taken during the following December.

(e) A request made by the applicant on 8 December 1981 for the discharge of the parental rights resolution was rejected by the juvenile court on 6 April 1982 and her appeal to the High Court against that decision was dismissed on 17 November 1982.

(f) Wardship proceedings instituted by the applicant in January 1983 to obtain restoration of her access to A and J were unsuccessful. However, in April 1984, whilst an application by the foster parents to adopt the children was pending, she again applied for wardship and, in October, the parental rights resolution was rescinded by the Authority. On 12 November 1984, the High Court confirmed the wardship and refused to dispense with the applicant’s consent to the adoption and, on 16 December 1985, it ordered arrangements to be made for her to have a measure of access to the children.

(a) The exact circumstances surrounding the passing of the parental rights resolution in April 1981 are confused (see paragraph 18 above). The applicant had from the outset certainly been in close contact with and received extensive support from the social workers responsible and their records suggest that on 1 April 1981 she received some form of warning, albeit in imprecise terms (see paragraph 16 above). She, on the other hand, states that she understood that no action would be taken by the Authority until she had discussed the position with a social worker on 3 April (ibid.). Be that as it may, it seems clear that she was not involved in the social workers’ discussion of 2 April, which led to the adoption of the resolution, and that she was not consulted beforehand as to the possibility of this step being taken (see paragraph 17 above).

(b) The applicant was not notified of the case conference that resulted in the contingent decision of 25 August 1981 to terminate her access to A and J and to place them for adoption, nor was she told of that decision until 9 October 1981 (see paragraphs 21-22 above). She had nevertheless, in July and in August of that year, previously expressed to a social worker anxieties about the prospect of the children’s returning home (see paragraph 19 above).

The Court discerns no reason - and none has been advanced by the Government - for not involving her more closely in the April 1981 decision. Indeed, it notes that the Local Ombudsman concluded that there had been maladministration, having regard to the shortcomings in the way in which the parental rights resolution was passed (see paragraph 26 above).

Somewhat different considerations apply to the decision of August 1981. The applicant was at the time involved in the incident concerning the theft from the hospital-safe, although she had been released on bail (see paragraph 20 above). Moreover, the decision was only contingent, in that it depended on the outcome of the applicant’s challenge to the parental rights resolution (see paragraph 21 above).

As regards the delay in advising her of the decision, the Court observes that the High Court considered that it would have been "premature" to inform her in August, whereas the Local Ombudsman took the view that "ideally" this should have been done (see paragraphs 25 and 26 above). If it had, she and her lawyers might certainly, in the light of that information, have decided not to withdraw her objection to the resolution on 29 September 1981 (see paragraph 22 above).

In view of this conclusion, the Court does not find it necessary to examine in this context the question of the remedies available to the applicant.

III. ALLEGED VIOLATION OF ARTICLE 6 para. 1 (art. 6-1)

"In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing ... by [a] ... tribunal   ..."

This submission was contested by the Government, but accepted by the Commission.

A. Applicability of Article 6 para. 1 (art. 6-1)

(a) The concept of a "civil right" within the meaning of Article 6 para. 1 (art. 6-1) was admittedly an autonomous one. However, that Article (art. 6-1) had no application unless the matter at issue constituted a legal right in the context of domestic law, to which it was therefore necessary to have regard.

(b) The notion of parental "rights" over children was outmoded; furthermore, according to dicta of English judges, the so-called "right" of access by a parent to his child was preferably described as a right in the child.

(c) In any event, the said right was a "rhetorical" and not a legal one.

(d) Even if there were such a parental right at the outset, it ceased to have a separate existence on the making of a care order or the passing of a parental rights resolution: the effect of these measures was to transfer to the local authority, subject to limited exceptions, all the rights, powers and duties of the parent with respect to the child. The mere possibility or expectation that the authority might, in its discretion, subsequently allow the parent to have access to the child did not constitute a "right".

The Court is not, however, persuaded by the Government’s argument that no "right" of the aforementioned kind was at issue in the present case.

It is true that, in the case of a parental rights resolution, the rights which vest in the authority are specifically stated to include "a right of access" (see paragraph 43 above), but neither for that measure nor for a care order does the legislation stipulate in terms that there shall thenceforth be no contact between parent and child. The position in English law is that the taking of a child into public care by one of these means does not automatically deprive the parent of access to him; its effect is that the continuation of access becomes a matter within the discretionary power of the local authority (see paragraph 52 above).

As the Government accepted, the statutes clearly recognise the continuation of parental access as generally desirable (see paragraph 52 above). Moreover, the Code of Practice on Access to Children in Care issued in December 1983 (see paragraph 56 above) expressly acknowledges that for most children there will be no doubt that their interests will best be served by efforts to sustain links with their natural families. It would be inconsistent with this aim if the making of a care order or the adoption of a parental rights resolution were automatically to divest a natural parent of all further rights and duties in regard to access.

The effect of these measures is not to extinguish all rights and responsibilities of the natural parent in respect of the child. Thus, for example, subject to the power of the court - and not the local authority - to dispense with his consent, he retains the right to agree or refuse to agree to the child’s adoption (see paragraphs 36, 43 and 57 above). Again, and even more importantly for the present purposes, he enjoys a continuing right to apply to the courts for the discharge of the order or resolution on the ground that such a course is in the child’s interests (see paragraphs 38 and 45 above). The issue for determination in such proceedings is the restoration of parental rights in regard to custody and control of the child. It would appear to the Court that the determination of a parental right is equally in issue where, during the currency of the order or resolution, a parent claims that the continuance or renewal of access is in the child’s interests. That this is so is now confirmed by the provisions of Part IA of the 1980 Act, inserted by the Health and Social Services and Social Security Adjudications Act 1983 (see paragraph 55 above), which are founded on the existence of just such a right on behalf of the parent.

Moreover, the extinction of all parental right in regard to access would scarcely be compatible with fundamental notions of family life and the family ties which Article 8 (art. 8) of the Convention is designed to protect (see, amongst other authorities, the Marckx judgment of 13 June 1979, Series A no. 31, p. 21, para. 45).

The Court thus concludes that it can be said, at least on arguable grounds, that even after the adoption of the parental rights resolution the applicant could claim a right in regard to her access to A and J.

That there was a dispute between the applicant and the Authority on the access question is clear and, indeed, this was not denied by the Government. They also accepted that if there was a parental "right" of access, it was a "civil" right. Since access forms an integral part of family life, the Court entertains no doubts on this latter point.

In reaching this conclusion, the Court has not been unmindful of the arguments advanced by the Government in favour of leaving discretion as to access to the local authority rather than to the courts, such as the large number of children in public care and the need to take decisions urgently and without delay, through specialised social workers and as part of a continuous process. On the other hand, this is an area in which it is essential to ensure that the rights of individual parents are protected in accordance with Article 6 para. 1 (art. 6-1). Furthermore, Article 6 para. 1 (art. 6-1) does not require that all access decisions must be taken by the courts but only that they shall have power to determine any substantial disputes that may arise.

B. Compliance with Article 6 para. 1 (art. 6-1)

It is true that a successful challenge would resolve the access issue indirectly. However, as the Government accepted, proceedings of this kind are directed to the parental rights resolution as such and not to the isolated issue of access (see paragraph 53 above). Yet whether a child should be in public care and whether his parent should have access to him are matters to which different considerations may well apply. Again, the parent may have no desire to challenge the resolution, being content for the time being at least to see his contacts with his child maintained. Yet again, he may be able to adduce reasons warranting a continuation or restoration of access but not of his care of the child. Furthermore, a challenge of the resolution by the parent may prompt, on the part of the local authority, opposition which would not be forthcoming if the proceedings were confined to the access issue.

Nevertheless, on an application for judicial review, the courts will not review the merits of the decision but will confine themselves to ensuring, in brief, that the authority did not act illegally, unreasonably or unfairly (see paragraph 53 above). Where, as in the instant case, a parental rights resolution is in force, the scope of the review effected in the context of wardship proceedings will normally be similarly confined (see paragraph 54 above).

In a case of the present kind, however, there will in the Court’s opinion be no possibility of a "determination" in accordance with the requirements of Article 6 para. 1 (art. 6-1) of the parent’s right in regard to access, as analysed in paragraph 82 above, unless he or she can have the local authority’s decision reviewed by a tribunal having jurisdiction to examine the merits of the matter. And it does not appear from the material supplied by the Government or otherwise available to the Court that the powers of the English courts were of sufficient scope to satisfy fully this requirement during the currency of the parental rights resolution.

IV. ALLEGED VIOLATION OF ARTICLE 13 (art. 13)

"Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity."

The Commission expressed the opinion that no separate issue arose under Article 13 (art. 13). The Government agreed, but submitted in the alternative that effective remedies were available.

V.  APPLICATION OF ARTICLE 50 (art. 50)

"If the Court finds that a decision or a measure taken by a legal authority or any other authority of a High Contracting Party is completely or partially in conflict with the obligations arising from the ... Convention, and if the internal law of the said Party allows only partial reparation to be made for the consequences of this decision or measure, the decision of the Court shall, if necessary, afford just satisfaction to the injured party."

Since the question of the application of Article 50 (art. 50) is therefore not yet ready for decision, it is necessary to reserve the matter and to fix the further procedure, taking due account of the possibility of an agreement between the respondent State and the applicant (Rule 53 paras. 1 and 4 of the Rules of Court).

FOR THESE REASONS, THE COURT UNANIMOUSLY

1.  Holds that there has been a violation of Article 8 (art. 8) of   the Convention;

2.  Holds that Article 6 para. 1 (art. 6-1) is applicable in the   present case;

3.  Holds that Article 6 para. 1 (art. 6-1) was violated;

4.  Holds that it is not necessary also to examine the case under Article 13 (art. 13);

5.  Holds that the question of the application of Article 50 (art. 50) is not ready for decision;

accordingly,

(a) reserves the whole of the said question;

(b) invites:

(i) the applicant to submit, within the forthcoming two months, full written particulars of her claim for just satisfaction;

(ii) the Government to submit, within two months of receipt of those particulars, their written comments thereon and, in particular, to notify the Court of any agreement reached between them and the applicant;

(c) reserves the further procedure and delegates to the President of the Court power to fix the same if need be.

Done in English and in French, and delivered at a public hearing in the Human Rights Building, Strasbourg, on 8 July 1987.

Rolv RYSSDAL

President

For the Registrar

Jonathan L. SHARPE

Head of Division in the registry of the Court

In accordance with Article 51 para. 2 (art. 51-2) of the Convention and Rule 52 para. 2 of the Rules of Court, the following separate opinions are annexed to the present judgment:

- joint opinion of Mr. Lagergren, Mr. Pinheiro Farinha, Mr. Pettiti, Mr. Macdonald, Mr. De Meyer and Mr. Valticos;

- joint opinion of Mr. Pinheiro Farinha, Mr. Pettiti, Mr. De Meyer and Mr. Valticos;

- joint opinion of Mr. Pinheiro Farinha and Mr. De Meyer;

- concurring opinion of Mr. Gersing;

- individual opinion of Mr. De Meyer.

R.R.

J.L.S.

INDIVIDUAL SEPARATE OPINION OF JUDGE DE MEYER